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The NPVIC – Where the Electoral College and Legislation Meet

In light of the recent election, the debate over whether or not the electoral college is still appropriate for the United States Presidential elections has been reignited once more. This post is an update of a previous post we did in 2014 covering one ongoing reform effort: “National Popular Vote Interstate Compact (NPVIC)”. States that pass legislation to join the NPVIC agree to select their electors for the winner of the national popular vote (rather than the winner of their state). The Compact only takes effect once enough states have joined to account for 270 electoral votes. The National Popular Vote Interstate Compact was started in 2001 as a way to elect the President of the United States by popular vote without requiring an amendment to the United States Constitution, which is incredibly difficult to do.

What is the Electoral College?

When it comes down to it, Americans don’t vote for the President and Vice President, they vote for presidential electors, known as the electoral college. The Founding Fathers established the electoral college as a compromise between (1) Congress choosing the president or (2) a popular vote of citizens electing the President. The compromise was struck to mitigate the potential for a single populous state or region’s candidate to dominate the process. Hamilton expressed his concern of the possibility of a tyrant manipulating public opinion and coming to power in the Federalist papers. This is one example of the many ways our Founding Fathers did not put their trust in direct democracy. Also, because the electoral college only meets once every four years, they felt it would not be susceptible to manipulation by outside interests.

Our Constitution outlines how each state is assigned its number of electors: one elector for each member of the Senate (2 from each state), and one elector for each member of the House of Representatives, currently ranging from 1 (WY) to 53 (CA) which are assigned proportionally by population, giving a total of 538. In the election of 2016, the state of Wyoming cast about 210,000 votes meaning each elector represented 70,000 public votes, while in California approximately 9,700,000 votes were cast for 55 votes, thus representing 179,000 votes per electorate. Thus the votes of citizens in less populous states count more. As noted above, this system was originally put in place specifically so that smaller states would still have a say in the governing of our country. Electors are re-allocated every 10 years based on the official census to adjust to shifting populations.

But how do the electors actually elect the president, and are they just a technicality, always voting as expected? Not quite. On the Monday after the second Wednesday in December (for the 2016 election this will be December 19th), electors gather in their respective state capitals to cast their votes via ballots. Electors are expected, but not required, to vote for the candidate which won the majority vote in their state. This “winner-take-all” system holds in all states but two, Nebraska and Maine, where electoral votes are assigned proportionally to the popular vote. For the rest of the states, “winner-takes-all” means whichever candidate won the majority receives all of the electoral votes from that state.

Constitutional scholars believe electors remain constitutionally “free agents” meaning they are able to vote for any candidate who meets the requirements for President and Vice President. Neither the Constitution nor Federal election laws compel electors to vote for their party’s candidate or the candidate that won in their state. However, 29 states have passed laws to require electors to vote as they have been directed by the vote, but scholars believe those requirements would not stand in a court challenge. There have been very few “faithless” electors throughout history, 157 in total with 71 changed because the original candidate died, three because electors chose to abstain from voting and 82 because of the personal initiative of the elector.

The House of Representatives and Senate meet in joint session on January 6 of the year following the election, at 1:00 pm, to count and certify the electoral votes. The Vice President announces the results after they are official. The candidate with a majority of electoral votes wins. If no candidate receives the majority, then the President is elected by the House of Representatives and the Vice President by the Senate, a process known as “contingent election“.

Historic Issues with the Electoral College

One historical complaint about the Electoral College is that it has acted as a method to suppress the minority vote. How? The founding fathers decided the president would not be chosen by Congress, but rather by “qualified citizens”. The suppression comes from the fact that the definition of “qualified citizen” has changed throughout history, originally meaning meaning white, land-owning men.

Many of us are familiar with the “Three-Fifths Clause” which stated that three of every five black people would count as population when allocating electoral votes, even though no black people actually got to vote. This led to the election of Thomas Jefferson because his opponent (John Adams) was an abolitionist, and the South had a enough electoral votes to defeat him, ironically because their black population qualified them for enough electoral votes to do so.

In 1869, after the Civil War, the “Three-Fifths Clause” was abolished and each person living in a state was counted as a whole person, both man and woman, and black people were guaranteed the right to vote with the 15th Amendment. Women, though, were still denied the right to vote. This era of the electoral college hindered women in their fight to vote because the states had no incentive to allow women to vote; states were already getting “credit” for their female population in the electoral college. This issue was finally put to rest in 1920 with the 19th Amendment which guaranteed women the right to vote nationally.

Current Debate and Possible Reforms

Today’s debate centers on the fact that is that it is possible to win the popular vote but lose the presidency. This is mostly because of the “winner take all” system, but also partly because smaller state’s citizens votes “count” more as explained above. A president has won the electoral, but not popular, vote five times in American history: 1824 Andrew Jackson lost to John Quincy Adams, 1876 Samuel Tilden lost to Rutherford B. Hayes, 1888 Grover Cleveland lost to Benjamin Harrison, 2000 Al Gore lost to George Bush and finally, 2016 when Hillary Clinton lost to Donald J Trump, despite having earned over 1.6 million more votes. (Note all of the losing candidates since the establishment of our current parties are Democrats.)

The “winner-take-all” allocation of votes also has huge ramifications on how campaigns are run, incentivizing candidates to visit some states and not others in any given year. It also means some people in “safe states”, like democrats Mississippi and republicans in California (for example), have no voice, since their electors all go the other way. However having the president chosen by popular vote would likely mean candidates would focus much more on cities, where lots of people live and thus votes are more concentrated. Candidates would have little to no incentive to worry about what rural places need or want. This may be more democratic, but it may or may not be a desirable outcome.

The constitution does not lay out how the states are to allocate their electoral votes. It only lays out how many electors each state has. States could divide up their votes proportionally, or by district, or (as the NPVIC suggests) based on who won the popular vote nationally. Each approach shifts the balance in a different way. Considering the current NPVIC, if states whose electoral votes add up to 270 agree to assign their electors to the winner of the popular vote, they can effectively eliminate the Electoral College. The NPVIC has already passed in states with a combined 165 electoral votes. By persuading a few more big swing states to join, the NPVIC would render the Electoral College redundant. However, all the states to have joined so far are very blue (see note above about democrats having consistently been the ones to win the popular vote but still lose).

The Bills

Here is a map of the current states that have proposed bills to revise some parts of the electoral college and the allocation of votes.

The two bills that are getting the most national attention is California’s Sen. Barbara Boxer’s bill US SJRes41 and New York’s S5478. SJRes41 calls for an amendment to the Constitution that would end the Electoral College system. If this passed, the amendment would take effect if ratified by three-fourths of the states within seven years after its passage in the U.S. Congress, so at least two election cycles later. Boxer stated, “In my lifetime, I have seen two elections where the winner of the general election did not win the popular vote. The Electoral College is an outdated, undemocratic system that does not reflect our modern society, and it needs to change immediately. Every American should be guaranteed that their vote counts.”

S5478 secures New York’s place on the list of states that have joined NPVIC. This will guarantee that every vote in every state will matter in every presidential election. “This action will help ensure every vote is treated equally and places New York at the forefront of the battle for fairer elections and strengthen our democracy. Making the national popular vote a binding one will enable all voices to be heard and encourage candidates to appeal to voters in all states”Governor Cuomo said.

The rest of these bills range from aiming to join the National Popular Vote compact to enact or repeal agreements to elect presidents by national popular vote to repealing national popular vote to creating a National Popular Vote Act to changing provisions relating to presidential electors. The US also had two other bills, HJRes102, the Every Vote Counts Amendment, and HJRes103, which proposes an amendment to the Constitution of the United States to abolish the electoral college and to provide for the direct popular election of the President and Vice President of the United States.

So, what now?

After reading all of this information, what do you think we should do? Are the American people not competent to directly choose their commander-in-chief in the 21st century? Do the reasons the electoral college was established make sense in modern times? Currently, there are many petitions circulating for the electoral college to break their “pledged” votes to Donald Trump and vote Hillary Clinton for president come December 19th.

This is not the first time the US has seriously considered addressing this issue. Baker v. Carr (1962) established the right of federal courts to review redistricting issues, which had previously been termed “political questions” outside the court’s jurisdiction. The Court’s willingness to change the allocation of political representation of urban vs. rural towns paved the way for the “one man, one vote”. Check out this podcast (The Political Thicket) for a more in-depth look at the story and the decision that allowed the Supreme Court to influence the way elections are carried out.

Even if the NPVIC gets enough votes to be enacted, there is some question about whether it would be constitutional without Congressional approval. However, some argue the Supreme Court decision Virginia v. Tennessee (1893) creates a precedent for states entering into binding compacts with each other without Congressional approval.

I do not know the answer. What I do know is the disappointment that comes from voting for and believing in a candidate that won over the majority of the American people but who lost to the other candidate because of a potentially outdated process. I am not sure the electoral college still has a place in modern America, at least in its current form. I do see that the issue is complicated and any change would create a seismic shift in how our politics work. It’s hard to predict if that change would be for the better. Let me know your thoughts in the comments below.